Published in Legal Consultant (Conjur), the most influential legal portal in Brazil, the jurist's article Rui Badaro classifies as unconstitutional the Italian government decree that imposes new restrictions on citizenship by descent.
Conjur receives around 7 million monthly visits and is a reference in specialized legal analyses.
In the text, Badaró states that the Decree-Law No. 36/2025, signed by Prime Minister Giorgia Meloni, issued on the evening of March 28, represents a break with Italy's legal tradition.
"What is this decree if not the assassination of the very legal father of Italian citizenship — the principle of..." the right of blood?” he asks.
“It makes a mockery of legal certainty”
According to the jurist, the measure imposes a indefensible legal fiction by declaring that certain descendants “never acquired” citizenship, even though their rights were previously recognized.
For him, the rule violates basic principles of law and constitutes an attempt to “deny, through normative means, an already consolidated legal fact”.
One of the most compelling passages of the article states that the government is “making fun of legal certainty”, by setting the deadline as the day March 27th, 2025, prior to the publication of the decree itself. “It is a legally impossible situation”, warns the author.
“Urgent decrees or legal fictions”
Badaró criticizes the adoption of an emergency instrument to change consolidated rights. “The identity crisis of the Italian State will not be resolved by emergency decrees or legal fictions, but requires a broad debate on the meaning of citizenship in times of globalization.”
The decree limits the recognition of citizenship to very specific cases, excluding grandchildren and great-grandchildren of Italians without clear justification. It also imposes restrictions on the production of evidence in recognition processes, making access to justice more difficult.
“Italianness cannot be defined by decree”
At the end of the article, the jurist states that the Italian constitutional text cannot be manipulated by momentary political interests. “The 'constitutional Italianness' cannot be defined by decree, but must emerge from an ongoing dialogue between citizens, institutions and diverse communities.”
The article also highlights that the decree contradicts fundamental principles of Italian Constitution, standards of European law and international commitments assumed by Italy.
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Opinion
The announced death of jus sanguinis and the constitutional exile of Italian descendants
April 3th 2025
Legal hermeneutics has never been so mistreated. In the dead of night on March 28, 2025, the Meloni government enacted Decree-Law No. 36/2025, perpetrating not only a rupture with Italian legal tradition, but an authentic "normative parricide." Now, what is this decree if not the assassination of the very legal father of Italian citizenship—the principle of... the right of blood that defined the legal identity of Italians for more than a century?
We are not faced with technical-procedural adjustments, but with a true paradigmatic revolution imposed without a democratic transition. This is a unilateral rupture of the tacit pact between Italy and its diaspora, the one that kept together, through the legal bond of citizenship, the peninsular Italians and the descendants of the great historical emigration.
Contextual triangle: demography, nationalism and securitization
There is no interpretation without pre-understanding, Lenio Streck always reminds us in his various texts published in Conjur and in his books. And the pre-understanding of this decree is anchored in a contextual triangle that needs to be made explicit: the European demographic crisis (the “demographic winter”), political neo-nationalism and the contemporary security obsession.
Italy is facing an aging population, low fertility rates and the rise of a nationalist-identitarian government that seeks to redefine national belonging in exclusionary terms. The Meloni administration, with its rhetoric of “Italians first”, transforms citizenship into a national security issue, subordinating fundamental rights to contingent political considerations.
We are witnessing a silent constitutional metamorphosis — the transition from a conception of citizenship based on blood inheritance (the right of blood) to another based on territorial control (jus territorialitatis). This transition is not made through the constitutionally appropriate means, but through an exceptional instrument that should only be used in emergency situations.
Legal fiction of 'retroactive non-acquisition': normative sophistry
The operative core of the decree is found in article 1, which inserts the new article 3-bis into Law no. 91/1992, establishing that:
“anyone who was born abroad even before the date of entry into force of this article and holds another citizenship shall be considered to have never acquired Italian citizenship…”
This linguistic construction hides a profound performative contradiction. By establishing that certain people are “considered never to have acquired” a status that, according to the consolidated legal interpretation, they already possessed, the decree attempts to circumvent the prohibition of harmful retroactivity through an indefensible legal fiction.
Now, a legal norm cannot be retroactive to deny the existence of legal facts already consummated under the aegis of the previous legal system. By claiming that certain people “never acquired” citizenship that was already recognized as theirs, the decree incurs a normative contradiction — the attempt to deny, by normative means, a legal fact already consolidated by the system itself.
Deadline: paroxysm of disproportionality
The decree establishes March 27, 2025 (until 23:59 p.m.) as the deadline for filing administrative or judicial requests, a date prior to the publication of the decree itself. An analysis that even a first-year law student would do shows that this provision fails all criteria of proportionality:
- It is not appropriate, as it establishes a deadline that has already been exceeded when the standard was published, creating a legally impossible situation;
- It is not necessary, as administrative objectives could be achieved within a reasonable period of time after the publication of the decree;
- It is not proportional in the strict sense, since the sacrifice imposed on individual rights is clearly excessive.
Even in extreme situations such as territorial conflicts, the deadlines for choosing nationality are typically counted in months or years, not retroactively. This is not simply disproportionate — it is the State blatantly mocking legal certainty, creating a rule with practically instantaneous and retroactive effects.
Exceptions to the general rule: insufficiency and arbitrariness
The exceptions to the decree (applications already submitted by the deadline of 27 March 2025; children of native-born Italians; children of those who have resided in Italy for two years; grandchildren of grandparents born in Italy) are clearly insufficient and arbitrary.
There is no substantial justification for limiting recognition to children of those born in Italy but not to great-grandchildren; or for requiring two years of continuous parental residence rather than one or three. These distinctions create a system of privileges and exclusions that would be difficult to sustain under proportionality scrutiny.
Evidential restrictions: the insurmountable procedural barrier
The decree modifies the evidentiary regime of recognition actions, excluding testimonial evidence and oath, in addition to imposing on the applicant the burden of proving negative facts — the non-existence of causes for loss of citizenship.
This inversion constitutes what we call “diabolical probatio” — the impossible proof. How can we demonstrate the non-existence of a fact? How can we prove that something did not occur? This requirement violates the principle of equality of arms in the process and creates an unjustified imbalance in favor of the State.
Multiple unconstitutionalities of the decree
The decree directly clashes with several fundamental principles:
- Principle of equality (Article 3 of the Italian Constitution): By discriminating against descendants of Italians based solely on their place of birth, the decree establishes an arbitrary criterion of differentiation.
- Principle of solidarity (article 2): The abrupt severance of ties with descendants of emigrants contradicts the intergenerational dimension of this structuring principle.
- Principle of protection of cultural identity (articles 6 and 9): The Italianness of the diaspora constitutes a cultural heritage that the State should protect, not extinguish.
- Principle of proportionality: The restrictions imposed manifestly fail the test of adequacy, necessity and proportionality.
At European level, the decree violates the limits on state discretion in matters of nationality established by the CJEU in the Micheletti and Rottmann cases, compromising the effectiveness of European citizenship as a fundamental status.
In the international context, the decree comes dangerously close to the prohibition of arbitrary deprivation of nationality protected by the Universal Declaration of Human Rights and violates the principle of legitimate expectations.
Between spilled blood and constitutional hope
What is revealed, beyond the technical-legal debate, is a profound identity crisis of the Italian State, which oscillates between its heritage as an “expanded homeland” and its contemporary aspirations as a “territorial fortress”. This crisis will not be resolved by emergency decrees or legal fictions, but requires a broad debate on the meaning of citizenship in times of globalization.
The Constitution is not just a normative text, but a living cultural process. “Constitutional Italianness” cannot be defined by decree, but must emerge from an ongoing dialogue between citizens, institutions and diverse communities.
For the millions of descendants who now see their legal bond with their ancestral land at risk, there remains the hope that the robust Italian and European constitutional tradition will prevail over the political opportunism of the moment. That Italian blood — a metaphor for a bond that transcends borders and generations — will not be spilled on the altar of territorial nationalism. That the promise of a plural, supportive Italy open to the world will not be sacrificed by a decree that, in its haste and disproportionality, betrays the very spirit of the Constitution.
That's it. Where is the Constitution in this decree? As Lenio Streck would say (I believe, me!): where's wally?"
Rui Badaro He is a lawyer, university professor and holds a PhD in International Law from the Universidad Católica de Santa Fe.
Originally published in conjur.com.br
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